De La Cruz v. Grondolsky

Filing 16

Judge Richard G. Stearns: Memorandum and ORDER on Respondent's Motion to Dimiss, entered granting 8 Motion to Dismiss copy to Mr. DeLaCruz 7/27/12 (Flaherty, Elaine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION No. 12-40015-RGS
LUIS D. DE LA CRUZ
v.
JEFFREY GRONDOLSKY, Warden,
Federal Medical Center Devens

MEMORANDUM AND ORDER ON RESPONDENT’S
MOTION TO DISMISS
July 27, 2012
STEARNS, D.J.
Petitioner Luis D. De La Cruz (De La Cruz) objects to disciplinary sanctions
imposed by the Warden of Federal Medical Center Devens (FMC Devens) after a
Discipline Hearing Officer (DHO) found him guilty of escape. De La Cruz asks the
court to vacate the DHO’s findings and restore his lost good-time credits, remove the
three points assessed to his custody classification, and order him returned to a less
restrictive prison setting. Respondent Warden Jeffrey Grondolsky moves to dismiss
the petition. For the reasons to be stated, the motion to dismiss will be allowed.
BACKGROUND
On September 21, 2011, at approximately 1:40 a.m., De La Cruz turned up
missing during an emergency bed count. A Bureau of Prisons (BOP) correction officer

testified that he saw De La Cruz sprinting from a wooded area at the rear of the prison
camp towards the back door of the dormitory at approximately 2:15 a.m. Upon being
intercepted by BOP officers, De La Cruz explained that he and another inmate had
gone for a walk on the running track at the edge of the camp because he was feeling
stressed and suicidal. He admitted that he and the fellow inmate had attempted to
sneak back into the dormitory undetected.
De La Cruz received an incident report on September 21, 2011, specifying a
charge of escape. After an initial hearing on September 25, 2011, the Unit Discipline
Committee (UDC) referred De La Cruz’s case to the DHO, pursuant to 28 C.F.R. §
541.7(a)(4) (seriousness of the violation). At De La Cruz’s request, Dr.Vikram
Kambampati appeared as his staff representative at the hearing. De La Cruz was
offered the opportunity to present witnesses and evidence, but declined. Ultimately,
the DHO found that De La Cruz was responsible for his conduct at the time of the
incident, and that he had escaped from the facility as charged.
DISCUSSION
“Where a prison disciplinary hearing may result in the loss of good-time credits,
Wolff [v. McDonnell, 418 U.S. 539, 563-567 (1974),] held that the inmate must
receive: (1) advance written notice of the disciplinary charges; (2) an opportunity, when
consistent with institutional safety and correctional goals, to call witnesses and present
2

documentary evidence in his defense; and (3) a written statement by the factfinder of
the evidence relied on and the reasons for the disciplinary action.” Superintendent,
Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985). The record confirms that all of the
Wolff procedural steps were followed and De La Cruz does not contend otherwise.1

De La Cruz argues instead that the evidence adduced at the hearing does not
support the DHO’s decision. Hill requires that “the findings of the disciplinary board
[leading to the revocation of good-time credits be] supported by some evidence in the
record.” Id. at 454. “The Federal Constitution does not require evidence that logically
precludes any conclusion but the one reached by the disciplinary board. Instead due
process in this context requires only that there be some evidence to support the findings
. . . .” Id. at 457. The court is satisfied that there is substantial evidence in the record
corroborating the DHO’s findings. The DHO relied on the testimony of eight BOP

1

De La Cruz received advance written notice of the disciplinary charges on
September 21, 2011, and he was advised of his rights in the disciplinary process on
September 25, 2011. See Pet. - Ex. 6 (DHO Report). The DHO offered De La Cruz
an opportunity to call witnesses, and he chose not to do so. Id. De La Cruz also failed
to present any documentary evidence, although he again had the opportunity to do so.
Id. at 2. The DHO provided De La Cruz with a written statement of the evidence relied
upon and the reasons underlying the disciplinary action on October 27, 2011. Id. at 24.
3

officers, and in particular the testimony of Officer Jensen. See Pet. - Ex. 6 (DHO
Report). Jensen testified that had seen De La Cruz (who had been found missing at
1:45 a.m.) running from the woods towards the dormitory at 2:15 a.m. Id. at 2-3. The
DHO discounted De La Cruz’s exculpatory explanation, in large part because he had
not been seen in the areas where he claimed to have been before attempting to return
to the dormitory. Id. at 3. Nor did the DHO consider credible De La Cruz’s assertion
that he did not hear the outdoor loud speakers announcing the emergency bed count.
Id.
De La Cruz also challenges the integrity of the competency evaluation performed
by Dr. Lindsay Olden, his treating psychologist. De La Cruz contends that Dr. Olden
did not adhere to the procedural and ethical standards prescribed by BOP Program
Statement 5270.09 and Program Statement 5070.12. The court gives no weight to De
La Cruz’s claims. In the first instance, the BOP’s Program Statements “are merely
internal agency guidelines and may be altered by the [BOP] at will.” Koray v. Sizer,
21 F.3d 558, 562 (3d Cir. 1994), rev’d on other grounds sub nom., Reno v. Koray, 515
U.S. 50 (1995). “Interpretive rules do not . . . have the force and effect of law and are
not accorded that weight in the adjudicatory process . . . .” Shalala v. Guernsey Mem’l
Hosp., 514 U.S. 87, 99 (1995). As Program Statement 5270.09 notes, the Code of
Federal Regulations delegates to the UDC and the DHO the determination of whether
4

an inmate involved in disciplinary proceedings is competent to participate. 28 C.F.R.
§ 541.6. The competency finding is to be made “based on evidence, including evidence
presented by mental health staff.” Id.
The DHO’s decision notes that “[a] Responsibility & Competency Evaluation
was conducted on you by Psychology staff due to your claims [of being suicidal and
depressed] and they found you were responsible for your conduct at the time of
incident.” Pet. - Ex. 6 (DHO Report).2 Dr. Olden states in an affidavit that “[a]t no
time since I began treating Petitioner has he been incompetent. Prior to determining
that he was both responsible and competent, I interviewed Petitioner.” Olden Decl. ¶
4. The DHO’s finding of competency, which is based on Dr. Olden’s evaluation of De
La Cruz and her familiarity with his treatment history, is conclusive of the matter.3

2

The fact that De LaCruz was placed on suicide watch does not compel any
finding that he was not responsible for his actions, or that he was mentally incompetent.
3

The court also persuaded that no violation of the ethical obligations set out in
Program Statement 5070.12 occurred. Although the Program Statement indicates that
“[p]rofessional ethics dictate that psychologists completing forensic evaluations make
every effort to avoid role conflicts,” and that “[w]henever possible, the forensic
evaluator should not be the person providing therapy or otherwise overseeing the
person being evaluated,” it also acknowledges the reality that at Medical Referral
Centers like FMC Devens “the utilization of a team approach may make the distinction
between treatment and evaluation roles less easily separated.” Consequently, “[i]n
these circumstances, the evaluator may belong to a team which is expected to both
evaluate and have some role in treatment.” Id.
5

Finally, there is no merit to De La Cruz’s claim that the loss of good-time credits
or his reassignment to a more secure institutional setting violates the Eighth
Amendment’s cruel and unusual punishments clause.4 In the first instance, there is
nothing “cruel and unusual” about the loss of good-time credits, a disciplinary sanction
which, as the Warden notes, is authorized by law. See 28 C.F.R. § 541.3. More
fundamentally, the deprivation of an inmate liberty interest is properly analyzed under
the Due Process Clause, and not the Eighth Amendment. Under the Due Process
Clause, an inmate’s liberty interests “will be generally limited to freedom from restraint
which, while not exceeding the sentence in such an unexpected manner as to give rise
to protection by the Due Process Clause of its own force . . . nonetheless imposes
atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life.” Sandin v. Connor, 515 U.S. 472, 484 (1995) (a thirty-day sentence to a
segregation unit did “not present a dramatic departure from the basic conditions of [the
inmate’s] indeterminate sentence.”). This rule has particular force where for security
or disciplinary reasons a prisoner is moved to a more restrictive and less privileged

4

The claim of a violation of the Equal Protection Clause does not merit any
extended discussion. As the Warden aptly notes, inmates do not make up a protected
class.
6

setting. See Dominique v. Weld, 73 F.3d 1156, 1161 (1st Cir. 1996) (prisoner had no
cognizable liberty or property interest in continued participation in a work release
program).5 Because De La Cruz’s loss of good-time credits had no effect on the
maximum length of his sentence, he has no viable liberty interest in their restoration.
Nor in light of Sandin does he have any viable right to litigate his disciplinary
confinement. See Wagner v. Hanks, 128 F.3d 1173, 1175 (7th Cir. 1997).
ORDER
For the foregoing reasons, the motion to dismiss is ALLOWED. The Clerk
will enter an Order of Dismissal and close the case.
SO ORDERED.

/s/ Richard G. Stearns
_______________________________
UNITED STATES DISTRICT JUDGE

5

The motion for an evidentiary hearing is DENIED. A district court may
dismiss a petition for relief “without holding an evidentiary hearing if it plainly appears
on the face of the pleadings that the petitioner is not entitled to the requested relief, or
if the allegations, although adequate on their face, consist of no more than conclusory
prognostications and perfervid rhetoric, or if the key factual averments on which the
petition depends are either inherently improbable or contradicted by established facts
of record.” United States v. LaBonte, 70 F.3d 1396, 1413 (1st Cir. 1995). The motion
for an independent mental examination is also DENIED.
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